[2024] UGCA 303

# THE REPUBLIC OF UGANDA

# THE COURT OF APPEAL OF UGANDA AT FORT PORTAL

[Coram: Geoffrey Kiryabwire, Muzamiru M. Kibeedi & Margaret Tibulya, JJA] CRIMINAL APPEAL NO. 432 OF 2016

(Arising from the High Court Criminal Session Case No. 104 of 2009 at Fort Portal)

#### **BETWEEN**

KATARINYEBA NERISENSIO ....................................

## AND

UGANDA ...................................

(An appeal from the Judgment of the High Court of Uganda of the Hon. Mr. Justice Akiiki-Kiiza J delivered on $28^{\text{th}}$ day of March 2011)

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# JUDGMENT OF THE COURT

## **Introduction**

The Appellant was indicted and convicted of the offence of Aggravated Defilement c/s 129 (3) & (4)(a) of the Penal Code Act Cap 120.

# **The Facts**

On the 12^th day of February 2009 at Kyangabukama Zone Isunga Parish, Kasende Sub-County in Kabarole District, the Appellant, at around 1200 hours, the victim Kugonza Rossetti aged 10 years was on her way to the well to fetch water near the appellant's home. That the Appellant grabbed and pulled her into his nearby house up to his bedroom where he forcefully removed her knickers, threw her on the bed and defiled her.

The Appellant claimed to be at home on the day of the alleged crime, working in his garden and preparing porridge for his children. His wife testified to corroborate his alibi. However, the trial Judge rejected their alibi, finding it untruthful. Based on the evidence, the Judge found the appellant guilty of defilement and convicted him of the offence.

# **Decision of the Trial Court**

The Trial Judge sentenced the Appellant to 25 years' imprisonment. Dissatisfied, the Appellant appealed against conviction and sentence on the following grounds: -

- 1. The learned trial Judge erred in law and fact when he sentenced the appellant to an illegal sentence of 25 years' imprisonment without taking into account the period spent on remand. - 2. In the alternative, the sentence of 25 years' imprisonment on the appellant was harsh and excessive in the circumstances.

The Respondent opposed the Appeal.

At the hearing, the Appellant was represented by Cosma A. Kateeba, Counsel for the Appellant and the Respondent by Happiness Ainebyona, Chief State State Attorney and Agumeneitwe State Attorney for the DPP.

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## APPLICATIONS

At the hearing, Counsel for the Appellant prayed that the Notice of Appeal which was filed be validated. The Respondent did not object to this application. Consequently, the Notice of Appeal was validated by Court.

Both parties also prayed that their written submissions be adopted by this Court as their legal arguments in the determination of the Appeal. The Court upheld the prayer for it to rely on the written submission of the Parties in determing the Appeal.

### **Powers of the Appellate Court**

This is the first appeal and the duty of the first appellate court is to reappraise the evidence and come up with its own inferences as per Rule 30(1) of the Judicature (Court of Appeal Rules) Directions S. I 13-10.

Further, we are alive to the duty of this court as a first appellate court as decided in the case of Kifamunte Henry v Uganda SCCS No. 10 of 1997 to reappraise all the evidence at trial and come up with our own inferences of law and fact. The basis for setting aside a sentence imposed by a trial court were generally set out in Ogalo s/o Owoura v R (1954) 21 EACA 270. In that appeal, the appellant appealed against a sentence of 10 years' imprisonment with hard labour which had been imposed for the offence of manslaughter. The East African Court of Appeal held that: -

"... The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the court had been trying the Appellant they might have passed a somewhat different sentence and it would not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James v R, (1950) 18 EACA 147, "it is evident that the Judge has acted upon wrong principle or overlooked some material factor". To this we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. An appropriate sentence should be proportionate to the offence with the gravest offences attracting the most severe penalties and lesser offences in terms of aggravation attracting less severe penalties. Courts have also added another principle of consistency in terms of equality before the law so that offences committed under similar circumstances with similar degree of gravity should attract the same range of sentences therefore precedents of the appellate courts are a relevant guiding actor..." $\circ$

# In Kiwalabye versus Uganda Criminal Appeal No. 143 of 2001 (SC) this Court held: -

"The appellant court is not to interfere with sentence imposed by a trial court which has exercised its discretion on sentence unless the exercise of the discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage of justice or where a trial court ignores to consider an important matter or circumstances which ought to be considered when passing the sentence or where the sentence imposed is wrong in principle"

This being a first appeal, it is this court's duty to reevaluate the evidence adduced in the lower court and arrive at its own conclusion. This duty has been restated in numerous authorities arising out of this court and the Supreme Court. See; Fr. Narsensio Begumisa and 3 Ors V. Eric Kibebaga SCCA No. 77 of 2002 (unreported); thus:

"The legal obligation of the 1^st appellate court to reappraise the evidence is founded in the common law rather than rules of procedure. It is a well settled principle that on a 1^st appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses.

Ground 1: The learned trial Judge erred in law and fact when he sentenced the appellant to an illegal sentence of 25 years' imprisonment without taking into account the period spent on remand.

## Submissions of the Appellant

Counsel for the Appellant is appealing only the sentence of 25 years imposed by the lower court. They argued that the sentence is illegal and manifestly excessive. They cite prior cases establishing that appellate courts will only intervene with sentencing if it's illegal or demonstrably unfair.

Counsel argues the sentence is illegal because the trial court failed to consider the time spent in pre-trial remand (2 years and 25 days) as mandated by Article 23(8) of the Ugandan Constitution. Counsel relied on the Supreme Court case of Rwabugande Moses Vs. Uganda Supreme Court Criminal Appeal No. 25 of 2014, which held that not considering remand time renders a sentence illegal. While acknowledging this case was determined after their trial $\bigcirc$

SXXX

Counsel still argued that the constitutional provision existed beforehand and the judge should have explicitly addressed it. He relied on another case, Okello William vs. Uganda, where the Court of Appeal applied the **Rwabugande case** (Supra) to one decided before it, a prior case. He then prayed that the court find that the trial judge's sentence is illegal due to this oversight.

### **Submissions of the Respondent**

Counsel for the Respondent argued that the Trial Judge did consider remand. She referred to the Judge's statement explicitly referencing the approximation of 2 years spent on remand, during the sentencing, she argued that the Rwabugande case (supra) of 2017 does not apply here because the Appellant was sentenced in 2011, before the new legal interpretation. Counsel argued that the trial Judge followed the sentencing regime that was applicable at the time. This only required the Court to consider the time spent on remand but not necessarily by deducting it arithmetically from the sentence. The Respondent requested the court to dismiss this ground of appeal.

## Findings and decision of Court

We have considered the submissions of both Counsel for which we are grateful.

The Supreme Court's decision in Rwabugande Moses Vs. Uganda Supreme Court Criminal (Supra), as cited and relied on by counsel for the appellant, where it was held that taking into account the period spent on remand by a court is necessarily arithmetical was handed down on the 3rd March 2017.

In the instant case, the sentence against the appellant was rendered on 28th March 2011. Therefore, **Rwabugande's case** (Supra) is therefore not applicable to this case.

Further, the trial Judge weighed the aggravating factors against the mitigating factors and rightly concluded that the former out-weighed the latter. We refer to page 35 of the Record of Appeal where the trial Judge held: -:

"... Accused is allegedly a first offender. He has been on remand for about 2 years. I take this period into consideration while considering the sentence to impose on him... He is said to have a large family of 2 wives and 10 children. That he is 57 years old and is remorseful. However, the accused has committed a serious offence. The maximum punishment upon conviction is a possible death penalty. This shows the seriousness of the offence of Aggravated Defilement. The victim was only 10 years old at the time. The accused is said to be 57 years now, which makes him to be 55 years old at the time the ¹ $Q$ $\mathcal{D}$

victim was defiled. In my considered view he was fit to be a grandfather of the victim. What makes this case strange is that the accused has two wives, one therefore wonders why he would go for the small girl, like the victim in this case for his sexual satisfaction? The only answer I can think of, is only his lust for sexual gratification. This must be condemned by all mankind and a stiff sentence must be given to the accused to march his lust. Putting everything into consideration, I sentence the accused to 25years imprisonment."

We therefore resolve this Ground in the negative.

# Ground 2: In the alternative, the sentence of 25 years' imprisonment on the appellant was harsh and excessive in the circumstances.

# **Submissions of the Appellant**

Counsel for the Appellant argued that the 25-year sentence is harsh and excessive. It is the case for the Appellant that the trial judge erred by not treating him as a first offender and by imposing a sentence based on a retributive approach rather than focusing on rehabilitation. The Appellant also argues for the need for consistency with sentences in similar cases, citing examples of sentences ranging from 11 to 15 years for aggravated defilement. The Appellant prayed for the court to reduce the sentence to 13 years, taking into account the pre-trial remand period.

## Submissions of the Respondent

Counsel for the Respondent argued that the 25-year sentence was neither harsh nor excessive. Counsel submitted that the trial Judge carefully considered all mitigating and aggravating factors and arrived at a fair sentence within the legal range for aggravated defilement.

Counsel for the Respondent further argued that the Trial Judge considered the Appellant's status as a first offender but still found that the severity of the crime warranted a harsher sentence. They argue that the sentence is consistent with other cases involving aggravated defilement, especially considering the young age of the victim. The respondent emphasizes the need for a deterrent sentence to prevent similar crimes in the future.

# Findings and decision of Court

We have considered the submissions of both Counsel for which we are grateful.

In Kobusheshe vs. Uganda, Court of Appeal Criminal Appeal No. 110 of 2008, this court upheld the sentence of 17 years' imprisonment imposed by the trial court on the appellant, a 30/ years old man for defiling a 5 years old girl. $LP$

The Supreme Court in Rugarwana Fred vs. Uganda Supreme Court Criminal Appeal No. 39 of 1995 upheld a sentence of 15 years as not being excessive where a 5-year-old victim was defiled in a latrine by the Appellant who was an adult. In German Benjamin vs. Uganda, Court of Appeal Criminal Appeal No. 142 of 2010, the Appellant, aged 35, had been convicted by the High Court at Fort Portal of defiling a girl aged 5 years and sentenced to 20 years' imprisonment. On appeal this Court set aside that sentence and substituted it with one of 15 years imprisonment.

In Friday Yasin vs. Uganda, Court of Appeal Criminal Appeal No. 16 of 2012 the Appellant had been sentenced to 19 years for aggravated defilement of a girl of 4 years. On appeal, this court set aside that sentence as being out of range with sentences for this kind of offence and imposed a sentence of 15 years.

In Taremwa Apollo vs. Uganda, Court of Appeal Criminal Appeal No. 0193 of 2014, it was held that the range of sentences in cases of aggravated defilement is usually in the range of 11-15 years of imprisonment. The Appellant in that case had been convicted of defiling an 8-year-old child and sentenced to 21 years in prison. On appeal, this Court set aside the sentence and substituted it for 15 years minus the 3 years the Appellant had spent on remand.

In Kayongo Sadam vs. Uganda, Court of Appeal Criminal Appeal No. 524 of 2016, the Appellant convicted of defiling a 6-year-old was sentenced to 20 years and on appeal this court set it aside and reduced it to 14 years.

In the case of Naturinda Yosamu vs. Uganda, Court of Appeal Criminal Appeal No. 091 of 2013, the Appellant who had been sentenced to life imprisonment for defiling a girl aged 4 years appealed to this Court which substituted his sentence for 15 years minus 1 year and three months spent on remand.

In Nzeimana Aaron vs. Uganda, Court of Appeal Criminal Appeal No. 59 of 2019, the Appellant who was convicted for defiling a 6-year-old was sentenced to 27 years' imprisonment. On appeal, his sentence was set aside and substituted for 15 years.

In Byera vs. Uganda (Criminal Appeal No. 99 of 2012) UGCA 61 (30 July 2018), the appellant was convicted of aggravated defilement of a 3-year-old girl and sentenced to 30 years. On appeal this Court substituted a sentence of 30 years' imprisonment with 20 years' imprisonment.

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In Ninsiima vs. Uganda, Court of Appeal Criminal Appeal No. 0180 of 2010, this Court set aside a sentence of 30 years' imprisonment imposed on the appellant by the trial court for Aggravated Defilement and substituted it with a sentence of 15 years' imprisonment.

For purposes of consistency in sentencing, we find based on the recent authorities that the sentence of 25 years is in the higher band and is therefore excessive. We therefore set it aside.

We shall now proceed to sentence the Appellant afresh pursuant to Section 11 of the Judicature Act Cap 13 which provides as follows:

"... For the purpose of hearing and determining an appeal, the Court of Appeal shall have all the powers, authority and jurisdiction vested under any written law in the Court from the exercise of the original jurisdiction of which the appeal originally emanated."

We find that a sentence of 20 years' imprisonment as the appropriate sentence in the circumstances of this case. From that sentence, we deduct the period of 2 years by the Appellant on pre-trial remand. Accordingly, the Appellant shall serve a term of 18 years to be served from 28^th March 2011 being the date of conviction by the trial Court. This would accord well with the principle of uniformity and consistency as factors to be considered while sentencing.

### **Final Decision**

Having held as we have on the above issues, we hereby Decide and Order that:

- The Appeal is upheld. - 2. The sentence imposed by the High Court is set aside and substituted with a term of 20 years' imprisonment. - 3. The Appellant shall serve a term of 18 years commencing on, 28^th March 2011 the date of conviction

Dated at ...................................

. . . . . . . . . . . . .

Hon. Mr. Justice Geoffrey Kiryabwire

cibee di $\overline{22222}$

Hon. Mr. Justice Muzamiru Mutangula Kibeedi

$\overline{q}$ . . . . . . . . Hon. Lady Justice Margaret Tibulya